EXPLANATORY STATEMENT
Aboriginal and Torres Strait Islander Commission (Misbehaviour) Revocation Determination 2012
Background
In February 2009, the Updated Economic and Fiscal Outlook announced that the Government would undertake a review of pre-2008 Commonwealth subordinate legislation and other regulation (the Review) “… to document those regulations which impose net costs on business, and identify the scope to improve regulatory efficiency”. The Department of Finance and Deregulation (Finance) was tasked with the responsibility of co-ordinating the Review on the Government’s behalf. A Pre‑2008 Review of Subordinate Legislation Final Report (Final Report) was completed for each portfolio and agreed between the Minister Assisting on Deregulation and each Portfolio Minister. Responsibility for actioning the recommendations of each report resides with individual Ministers.
The Review identified in relation to the Families, Housing, Community Services and Indigenous Affairs (FaHCSIA) portfolio 10 ‘in-scope’ policy clusters, that included background information, relevant review history and Finance’s recommendations. Policy cluster 1 dealt with Aboriginal and Torres Strait Islander Commission (ATSIC) Regulations.
Finance recommended in the Final Report that FaHCSIA take action to repeal the regulations in cluster 1 (twelve in total) because they serve no further purpose as ATSIC was abolished with effect from 24 March 2005.
The instruments are now enabled by the Aboriginal and Torres Strait Islander Act 2005 (the Act) previously known as the Aboriginal and Torres Strait Islander Commission Act 1989.
Purpose
The purpose of the Aboriginal and Torres Strait Islander Commission (Misbehaviour Revocation) Determination 2012 (the Determination) is to revoke the Aboriginal and Torres Strait Islander Commission (Misbehaviour) Determination 2002 (the Misbehaviour Determination) made under subsection 4A(1) of the Act. This instrument was identified in the Final Report as being redundant.
Legislative Authority
The Determination is a legislative instrument as provided by subsection 4A(3) of the Act (specified as a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 and declared to be a legislative instrument as provided by subparagraph 6(d)(i) of the Legislative Instruments Act 2003). It commences on the day after it is registered on the Federal Register of Legislative Instruments.
The Determination is made under subsection 4A(1) of the Act.
Cessation
The Determination ceases to have effect at the end of the day it commences.
Consultation
Consultation was considered unnecessary because the Determination is removing redundant regulation and is therefore of a minor or machinery nature and does not substantially alter existing arrangements (see paragraph 18(2)(a) of the Legislative Instruments Act 2003).
Regulatory Impact Analysis
The Determination is not regulatory in nature, will not impact on business activity and will have no, or minimal, compliance costs or competition impact.
Removing redundant regulation reduces costs incurred by business in understanding and complying with outdated regulatory requirements and is part of a range of better regulation initiatives being taken forward by the Government to improve the quality of regulatory stock and ensure regulation does not impose unnecessary costs and inefficiencies on business.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
The Determination is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Determination
The Determination revokes the Misbehaviour Determination because it is redundant and does not need to be retained as current subordinate regulation on the Federal Register of Legislative Instruments.
The Misbehaviour Determination is redundant because ATSIC was abolished with effect from 24 March 2005.
Human rights implications
The Determination does not engage any of the applicable rights or freedoms.
Conclusion
The Determination is compatible with human rights as it does not raise any human rights issues.
The Hon Jenny Macklin MP, Minister for Families, Community Services and Indigenous Affairs and Minister for Disability Reform
Overview
The Aboriginal and Torres Strait Islander Commission (Misbehaviour Revocation) Determination 2012 was enacted to address the redundancy of existing regulations following the abolition of the Aboriginal and Torres Strait Islander Commission (ATSIC) on 24 March 2005. This determination revokes the Aboriginal and Torres Strait Islander Commission (Misbehaviour) Determination 2002, which was identified as redundant during a pre-2008 Review of Subordinate Legislation coordinated by the Department of Finance and Deregulation. The review aimed to document regulations imposing net costs on business and identify opportunities for regulatory efficiency improvements. The determination was made under subsection 4A(1) of the Aboriginal and Torres Strait Islander Act 2005, previously known as the Aboriginal and Torres Strait Islander Commission Act 1989, and it is considered to be of a minor or machinery nature, thus not requiring formal consultation. The revocation of this determination is part of broader government initiatives to streamline regulatory stock and reduce unnecessary costs and inefficiencies on businesses.
The enactment of this determination is consistent with the policy objectives of the Human Rights (Parliamentary Scrutiny) Act 2011, ensuring compatibility with human rights as it does not engage any of the applicable rights or freedoms. The determination was registered on the Federal Register of Legislative Instruments and ceases to have effect at the end of the day it commences, reflecting its purpose to remove outdated regulatory requirements.
Scope and Application
The Aboriginal and Torres Strait Islander Commission (Misbehaviour Revocation) Determination 2012 applies to the revocation of the Aboriginal and Torres Strait Islander Commission (Misbehaviour) Determination 2002, which was established under the Aboriginal and Torres Strait Islander Act 2005. This Act, previously known as the Aboriginal and Torres Strait Islander Commission Act 1989, governs the activities and responsibilities related to Aboriginal and Torres Strait Islander affairs. The Determination targets the removal of outdated regulations that were pertinent to the now-abolished Aboriginal and Torres Strait Islander Commission (ATSIC), which ceased to exist on 24 March 2005. The revocation of these regulations is part of a broader initiative to streamline and modernise the legislative framework, ensuring that only relevant and necessary regulations remain in effect. The scope of this determination is limited to the cessation of these specific regulations, which are deemed redundant following the abolition of ATSIC. The Determination does not extend to other areas of Indigenous affairs or other regulatory frameworks.
Key Provisions
The main operative sections of the Aboriginal and Torres Strait Islander Commission (Misbehaviour Revocation) Determination 2012 (the Determination) revolve around the revocation of the Aboriginal and Torres Strait Islander Commission (Misbehaviour) Determination 2002 (the Misbehaviour Determination), which was identified as redundant. This revocation is outlined in section 1 of the Determination, which explicitly states that the Misbehaviour Determination is revoked due to its redundancy following the abolition of the Aboriginal and Torres Strait Islander Commission (ATSIC) on 24 March 2005. The Determination, as a legislative instrument, is governed by subsection 4A(3) of the Aboriginal and Torres Strait Islander Act 2005 (the Act) and is specified as a disallowable instrument under the Acts Interpretation Act 1901.
The Determination imposes obligations on the relevant parties, primarily by removing outdated regulatory requirements that no longer serve a purpose. This simplification of the regulatory environment aims to reduce the burden on businesses and individuals who were previously required to comply with now-defunct regulations. By revoking the Misbehaviour Determination, the Act ensures that the Federal Register of Legislative Instruments reflects current and relevant legislation, thereby streamlining compliance and administrative processes.
In terms of legal consequences, the Determination does not introduce new offences or penalties as it primarily serves to remove redundant regulation. However, any continued reliance on the now-repealed Misbehaviour Determination could lead to legal complications, as the revoked regulations would no longer have legal standing. This means that parties who do not update their practices to reflect the revocation could inadvertently violate the current legislative framework. While the Determination itself does not impose new penalties, non-compliance with the updated regulations could result in civil or criminal consequences under other applicable laws.
The Determination's compatibility with human rights is assured by the Statement of Compatibility with Human Rights, prepared in accordance with the Human Rights (Parliamentary Scrutiny) Act 2011. This statement confirms that the Determination does not engage any of the rights or freedoms recognised or declared in the international instruments listed in section 3 of the Act, thereby ensuring that the revocation of the Misbehaviour Determination does not adversely affect human rights. The revocation is seen as a positive step in reducing unnecessary regulatory burdens, which aligns with the broader objective of improving regulatory efficiency without compromising human rights.